Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2020-01-17 Docket: C65735

Judges: Gillese, Rouleau and Fairburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Taylor Williams, Appellant

Counsel: Cara Barbisan, for the appellant Gerald Brienza, for the respondent

Heard: January 16, 2020

On appeal from: The conviction entered on April 18, 2018 by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Taylor Williams (the appellant) and his friend, Ronald Hopkins, were street racing on a sunny day in April 2018. The roads on which they were travelling were clear and dry, with a posted speed limit of 60 kph. Mr. Hopkins lost control of his car at a bend in the road and struck a lamp post, killing Candace Gabriel, the passenger in his car.

[2] Both the appellant and Mr. Hopkins were convicted, after trial by judge alone, of dangerous driving causing death. The main issue at trial was whether Mr. Hopkins’ car had an unexpected mechanical failure that made him unable to operate his car normally. No mechanical inspection was done of his car after the crash.

[3] In support of its case, the Crown: tendered photographs from the collision scene; called evidence from four civilians who observed the driving of the co-accused shortly before the collision; played video surveillance taken from cameras of businesses located on the road on which the collision took place and which captured the cars that each co-accused was driving shortly before the collision; and called expert evidence on the “critical curve speed” at the bend in the road where the collision took place.

[4] Mr. Hopkins testified in his own defence. The appellant exercised his right to not testify. The defence also called expert evidence from an engineer on automotive mechanics generally and the potential automotive failure that could be inferred from the wreckage and debris on the road.

[5] The trial judge found that Mr. Hopkins was travelling about 100 kph at a point where the critical curve speed was 88 kph and it was that which caused him to lose control of his car and hit the pole.

[6] The appellant submits that the trial judge erred in: (1) failing to consider that a mechanical failure of Mr. Hopkins’ car was a reasonable inference and could have accounted for the accident and/or (2) her causation analysis as it pertained to him.

[7] We dismissed the appeal at the completion of the hearing for reasons to follow. These are the promised reasons.

(1) The trial judge considered a possible mechanical malfunction

[8] The appellant says that the trial judge failed to properly consider the evidence in support of an inference that a mechanical failure of Mr. Hopkins’ vehicle was the cause of the accident. He points to three sources of evidence:

1. Mr. Hopkins’ evidence;
2. The statement that Mr. Hopkins made at the time that a witness to the accident called 911. In the 911 call, Mr. Hopkins can be heard asking the witness placing the call “What happened to my wheel? Did it break?” and
3. The evidence on what could have been learned from the car wreckage had it been preserved for inspection.

[9] The appellant takes no issue with the trial judge’s handling of Mr. Hopkins’ evidence which, for lengthy and detailed reasons, she found unreliable. She also squarely rejected his evidence on a possible mechanical failure.

[10] However, the appellant says the trial judge failed to properly consider Mr. Hopkins’ statement overheard in the 911 call. We disagree.

[11] At para. 165 of her reasons, the trial judge acknowledges the statement and Mr. Hopkins’ testimony about it. She states that she was “not persuaded” that the statement was an assertion showing that, at the time of the accident, Mr. Hopkins believed there had been a mechanical issue with the car. She said that Mr. Hopkins was trying to turn what was effectively a question to the witness into an assertion of a mechanical failure. She found that, read in context, the statement was simply Mr. Hopkins’ attempt to ascertain from the witness what had happened. It was entirely open to the trial judge to make this finding.

[12] In terms of the experts’ conflicting evidence about what might have been learned from the car wreckage, had it been preserved for inspection, the trial judge addresses this at para. 161 of her reasons. She found it unnecessary to speculate as to what if anything might have been gleaned by such an inspection. She noted that there was no physical evidence that supported Mr. Hopkins’ assertion of a mechanical failure but went on, in the following paragraphs, to explain that was not why she rejected his evidence on this matter. She rejected it because it was incredible, explaining that the vehicle had been road safe, had never had any mechanical difficulties, was performing well into the bend, and was then said to have suddenly stopped performing.

[13] The trial judge also acknowledged that the defence expert testified that mechanical failure appeared to be possible, given the evidence about how the car leaned. However, the trial judge found the defence expert to be unreliable and gave cogent reasons for this.

[14] Thus, we do not accept that the trial judge committed the alleged errors in relation to a possible mechanical malfunction.

(2) The trial judge made no error in her assessment of causation as it relates to the appellant

[15] The law is clear that, absent an intervening event, when two motorists engage in street racing, both are considered in law to have caused injury to an innocent third party who is harmed because of their racing. The appellant acknowledges this legal principle but says that the trial judge failed to recognize an intervening event, namely, that he had withdrawn from the race. In support of this ground of appeal, he points to the videos that show that his car was behind Mr. Hopkins’ when the crash occurred.

[16] We do not accept this submission. The trial judge addresses this point at para. 172 of her reasons when considering whether the appellant’s conduct was a significant contributing cause of Ms. Gabriel’s death.

[17] In para. 172, the trial judge sets out her finding that the appellant instigated the racing by revving his engine twice and that he then drove at an objectively dangerous rate of speed. She then states:

The videos show that [the appellant] was ahead of Mr. Hopkins and then fell slightly behind by the time they reached the Wasteco. But, I am prepared to find that for most of the time after the intersection, he actively engaged in the race, and chose to maintain a position parallel, or close to parallel, with Mr. Hopkins. [Emphasis added.]

[18] In short, the trial judge found that the appellant did not withdraw from the race. Rather, she found that after instigating the race, the appellant chose to actively engage in it, remaining parallel or close to parallel with Mr. Hopkins’ car. While he may have fallen “slightly behind” Mr. Hopkins’ car at the point of the crash, the trial judge’s findings of fact make clear that the slight falling behind was not the function of leaving the race. On the trial judge’s findings, there was no intervening event.

[19] After finding that the test for factual causation had been met for both co-accused, the trial judge concluded that the test for legal causation had also been met: a reasonable person in the position of both co-accused would have easily recognized the foreseeable risk of immediate and substantial harm that their driving posed not only to themselves but to other drivers and innocent third parties.

[20] For these reasons, there is no error in the trial judge’s causation analysis as it relates to the appellant.

Disposition

[21] The appeal is dismissed.

“Eileen E. Gillese J.A.” “Paul Rouleau J.A.” “Fairburn J.A.”